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					Summaries - Matrimonial property distribution judgments from 1999 to 2009
HENDRINA GONDWE V GLYN GONDWE matrimonial cause No. 2 of 1996. MWHC
Blantyre Judgment delivered on 10th February, 2000.
CORAM: Potani, Deputy Registrar

Facts
Upon dissolution of their marriage, the petitioner sought fair distribution of property obtained
during subsistence of the marriage. The property concerned was 3 motor vehicles; plot of land
among others. The petitioner and the respondent contributed to purchase of some of the property.
One of the vehicles was bought by the respondent after dissolution of their marriage. She also
claimed possession of property she acquired before marriage. Respondent claimed that one of the
cars was bought after the marriage was dissolved.

Issue (s)
Whether or not the petitioner had proprietary interests in the property concerned?

Judgment
   - Petitioner was entitled to the property she herself obtained before marriage
   - Court ordered equal share on property acquired jointly
   - The car purchased after dissolution of the marriage was not joint property, it belonged to
     the respondent

Ratio Decidendi
   - Property belongs to the purchaser. Only jointly held property is subject to distribution
       upon dissolution of marriage.


MANGISONI V MANGISONI (CIVIL CAUSE NO. 494 of 2000) [2003] MWHC Blantyre
Judgment delivered 3rd July 2003

CORAM: CHIMASULA PHIRI J.

Facts

The plaintiff and the defendant, married under customary, upon dissolution of their marriage, the
plaintiff claimed for the sum of US$28,025.10 and interest thereon as part of contributions she
made to purchase of other property in the family. She claimed she contributed in purchasing
household items such as TVs, cooker, refrigerators and a motor vehicle among others. She did
not have documentary evidence that she contributed. The property was in the defendant’s sole
name. Secondly, the plaintiff claims general damages in respect of alleged enslaving and
tortuous conduct suffered by the plaintiff whilst the plaintiff and defendant were living together
in the USA. The plaintiff claims a fair and equitable distribution of property allegedly jointly
acquired and owned.


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The defendant has challenged these claims saying he used his money to purchase the property
and also that before the plaintiff found a job she was depending on his financial support the
plaintiff has also challenged the defendant's claims.

Issue (s)
    - Whether or not the plaintiff had equitable rights in the property bought when she was
        staying with the defendant as husband and wife.
    - Whether or not she contributed in purchasing of the property

Judgment
   - The plaintiff's claim for US$28,025.10 and interest dismissed considering that from end
     of August 1995 up to January 1996 the plaintiff was wholly dependant on the defendant's
     income but that has not been taken into account in her claim.
   - As for the property that they contributed money when buying, court ruled that that
     property should be distributed equitably in proportions one third each and the other one
     third for the broken marriage’s children’s trust.
   - But court dismissed the plaintiff’s claims over the other property because she failed to
     produce documentary evidence that she contributed in purchasing the property although
     the property was solely in the defendant’s name

Ratio Decidendi
Only property that parties to the marriage contributed money when purchasing is subject to
distribution upon dissolution of the marriage.


PRISCA KULISEWA V JOEXLS KULISEWA AND ANOTHER MATRIMONIAL
CAUSE No. 3 of 2001: Judgment delivered 18th March 2003.
CORAM: Hon. A.C. Chipeta, J.

Facts
The case inter alia involved distribution of property upon dissolution of the marriage of the
plaintiff and the respondent. The property concerned was a house on the premises of the
defendant’s parents. Plaintiff claimed that she assisted in the construction of the house. Plaintiff
also claimed property obtained by the defendant before marriage. She also claimed other
property which was a gift to the defendant from his brother.

Issue (s)
        - Whether plaintiff contributed to the construction of the house?
        - Whether the plaintiff could benefit from property obtained before marriage by the
        defendant

Judgment

   -   Owing to the lack of sufficient evidence from the plaintiff about her contributions to the
       construction of the house, court held the house being on the defendant’s premises, even




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        though it was used by the couple, belonged to the defendant’s parents and therefore the
        plaintiff had no beneficial interest in the house.
   -    The plaintiff could neither benefit from property purchased before marriage nor from the
        property that was advanced to the defendant as a gift.
   -    Plaintiff would not be awarded up to 50 percent of the property because her contributions
        could not constitute that much.

Ratio Decidendi
   - Joint ownership of property cannot just be implied from existence of marriage. Property
       belongs to the purchaser
   - Property obtained before marriage belongs to the purchaser unless it was intended to be
       made part of joint property upon marriage.
   - Property given as a gift to one of the spouses does not automatically become joint
       property

ABDUL RASHID VS EVELYN RASHID Civil Appeal No. 17 of 2001 MWHC Blantyre.
Judgment delivered on 18th July 2002
CORAM: Hon. Justice A.C. Chipeta.

Facts
The parties got divorced as a result of desertion on the part of the appellant husband. Appellant
appeals contending that the lower court erred by denying him a share of the two plots that were
bought by his wife during the subsistence of their marriage. He contends that the plots were
jointly held between him and the wife. They both had separate businesses. The wife used her
proceeds alone to buy the plots of land.

Legal Issues
Whether or not the ex-husband had beneficial interest in the plots of land that were purchased by
his wife during the subsistence of their marriage?

Judgment
Appeal dismissed. The appellant husband had no beneficial interest in the plots that were
purchased by his wife because he did not contribute to the purchase of the same, neither did he
contribute to construction of the houses thereon.

Ratio decidendi
A spouse acquires interest in property purchased by the other spouse during marriage, inter alia,
depending on whether he or she has directly or indirectly contributed to its purchase.



ROSE MAGOMBO VS LUKA MAGOMBO CIVIL APPEAL CAUSE NUMBER 23 of
2002 MWHC Blantyre Judgment delivered on 24 the September, 2002
CORAM: TWEA, J.

Facts



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The parties were married at custom according to the laws obtaining in Chiradzulu District in
1983. They resided at Bangwe in the City of Blantyre, where the respondent was teaching.
There they lived in their matrimonial home worth of K500 – K600 rentals per month. They lived
together as family in the said house for 20 years. The house was built whist they were married
and the appellant contributed labour. They have six children from the marriage. Following
disputes in the family the lower court dissolved the marriage and ordered that the respondent
compensates the appellant with the sum of K6, 000.00 and further that he pays her K4, 000.00
for her to build a house in the village. The court further ordered that the matrimonial property be
divided equally among them and that the respondent should be responsible for the upkeep and
school fees for the children. The appellant now appeals against the decision contending that the
respondent did not build a house for her at her home, that the trial Magistrate did not take into
account that she contributed to the development of the plot that they acquired and built the house
in which they lived, that the compensation order, is not sufficient in view of the fact that she has
six     children     with      the     respondent      which     children     live    with      her.


Issue (s)
Whether the appellant had equitable rights in the matrimonial home and property

Judgment

Court held that the appellant having contributed labour to construction of the matrimonial house
acquired equitable rights. However since the children may still live in the house, instead of
selling it and distributing the proceeds between the appellant and the respondent, court ordered
the respondent to pay to the appellant K20,000 as compensation for the house. Court also
ordered the respondent is to pay the appellant K400.00 a month for maintenance.

Ratio Decidendi
Contribution to the purchase or acquiring of property by any of the parties to the marriage
confers on the contributor equitable rights in the property.

GETRUDE GONDWE VS MATIASI GONDWE Civil Appeal Cause No. 26 of 2002
MWHC Blantyre Judgment delivered on 24th September 2002

CORAM:          TWEA, J

Facts
The appellant appeals against the Magistrate order only. She has claimed that she was not
compensated for living with the respondent and was not given any of the household goods, or the
plot they owned, she claimed she had nowhere to live with the child since she has no house. The
appellant lived with the respondent whilst formalities of their marriage were not concluded.

Issue (s)
Whether appellant had claim over property shared while she was in cohabitation with the
respondent




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Judgment
     - Since there was no marriage the appellant had no equitable rights in the property she
         shared with the respondent. Court however awarded her compensation for the child she
         had with the respondent.
     - Court also held that respondent would not be ordered to provide a house for the appellant
         since theirs was not marriage but friendship because they stayed together without
         formalizing a marriage.
Ratio Decidendi
It is only property acquired whilst marriage subsists that qualifies to be matrimonial property and
subject to distribution between the couple upon dissolution of the marriage.

KAMUDZIAKA V KAMUDZIAKA (18 of 2002) MWHC Lilongwe. Judgment delivered on
29th May 2008

CORAM: CHINANGWA, J.
Facts
Appellant wife sought divorce from her husband on grounds of adultery with her younger sister.
Trial court did not find adultery but granted divorce on the ground that the marriage was
irretrievably broken down. Appellant appeals inter alia, contending that the trial court erred by
not ordering the respondent to build her a house as per custom. The said marriage did not have
ankhoswe. Appellant claimed that she contributed K40,000 towards the purchase of a motor
vehicle. She did not state the type of motor vehicle or registration number or when it was bought.

Legal Issues
   - Was there a valid marriage at all?
   - Was the appellant entitled to sue when there was no proof of marriage?
   - Whether or not the court had jurisdiction to order respondent build a house for appellant
       if there existed no marriage between them?
   - Was the existence of the motor vehicle proven?
Judgment
   - Since there was no valid marriage all the orders fail.
   - She was not entitled to a share in motor vehicle. She did not bring before the court
       evidence to prove even the existence of the car.

Ratio decidendi
Where there was an invalid marriage, the woman is not entitled to have a house built for her by
the husband. Parties are only entitled to what they jointly purchase.


EVANS MZANDU V CHRISSIE MZANDU Civil Appeal No. 14 of 2003: MWHC
Lilongwe. Judgment delivered on 31st of October, 2003
CORAM        :     CHOMBO, J

Facts




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The two parties had their marriage dissolved by the Chief Resident Magistrate in Mzuzu. The
case was then taken by the Senior Resident Magistrate to determine issues of custody of the
children of the marriage and distribution of the matrimonial property. Thereafter the Senior
Resident Magistrate proceeded to distribute the matrimonial property based on this decision. The
property in question was Cooker, two motor vehicles, 2 plots of land in Monkebay, Display
Cabinet, Fridge, Sofa set, Coffee table and stools, One ¾ and two single beds and their
mattresses among other household property. One of the vehicles was for the use of the wife and
children. The Appellant was dissatisfied with the distribution of the said property hence this
appeal.

Issue (s)
    - Whether or not the wife had beneficial interest in the property, including that which was
        not registered in her name, for example the cars among others?
    - Whether the wife was entitled to a share in the two plots of the family

Judgment
   - The wife awarded the cooker instead of the hotplate since she is staying with the children
     of the marriage as well.
   - The wife awarded one of the vehicles since it was, when it was bought, intended for the
     wife and children when it was bought.
   - Appellant husband ordered to pay the respondent wife K5, 000.00 every month as
     maintenance.
   - Wife awarded one of the plots which were part of matrimonial property. The two plots
     being matrimonial property and also the marriage being contracted under matrilineal
     system, the wife is entitled to a house.

Ratio Decidendi
   - When determining proportions for disposition of matrimonial property upon break down
       of marriage, court should take into account the financial expenses the parties make to the
       general household upkeep. The name in which the property is registered is not the
       determinant of ownership.
   - Under chikamwini marriage if the marriage dissolves before the husband builds a house
       for the wife, his obligation to provide the same for the wife does not cease until he
       provides the house for the wife.

TRYWELL THOLE VS MESINAYI CHAMBANI Civil Appeal Cause No. 39 of 2004:
MWHC Mzuzu. Judgment delivered on 09th March 2007
CORAM: The Hon. MR. Justice L.P. Chikopa

Facts
The parties’ marriage was dissolved in 1996. They had eight children. The appellant claims nine
heads of cattle from the defendant. The heads of cattle were paid as lobola to the respondent. The
lower court in distributing the property held that the heads of cattle belong to the respondent. The
appellant however, disputes that decision. The appellant already took away the heads of cattle
from the respondent I contravention with the lower court’s decision.




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Issue (s)
Whether or not property paid as lobola would be subject to distribution upon dissolution of
marriage?

Judgment
Appeal dismissed in entirety. Upholding the lower court’s decision, the court held that the heads
of cattle belonged to the respondent. The appellant was in contempt of the court order by taking
away the heads of cattle.

Ratio Decidendi
Property obtained by the wife as lobola is not subject to distribution upon dissolution of marriage

E. BANDA vs. F. BANDA Civil Cause No. 142 of 2004 MWHC Lilongwe. Judgment
delivered on 20th July 2004

CORAM: Hon Justice Chombo

Facts

The plaintiff and the defendant’s marriage was dissolved by the lower court but the order on
distribution of their matrimonial house was not made. The plaintiff applies for an interlocutory
injunction to restrain the Defendant, himself his servants or agents from occupying or continuing
to occupy or trespass on property on Title Deed No. 21/233 in the city of Lilongwe, which
property, according to the Plaintiff’s affidavit before Chinangwa, J is part of the matrimonial
property in issue and source of income. She deponed that the said property was, by some mutual
agreement or arrangement, left to her to administer by the Defendant. The plaintiff did not claim
ownership of the said house but only alluded that as part of the matrimonial property she was
looking for her own share of the same.

The Defendant however has contended that he is the sole owner of the said house. His
documentary evidence also show that he is servicing the loan with New Building Society single
handedly and therefore the plaintiff cannot or should not restrain him from dealing with his own
property as he wishes. He also submitted proof of the fact that he is paying school fees for one of
the children who stays with him. He disputed the plaintiff’s claim that she is looking after and
paying school fees for the two children.

Legal Issues
Whether or not the plaintiff has a share to protect in the matrimonial home?

Judgment
Court declined to grant the injunction but instead made an order that the parties commence new
proceedings to determine their share in the said matrimonial house.
“If it is [a matrimonial home], which I would want to presume is the reason why the plaintiff
wants to protect the property, then it will only be right and proper that no one party deals with
the property in such a way that it would permanently deprive the other of its benefit.”




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Ratio decidendi

Matrimonial property shall not be dealt with by any of the parties to the dissolved marriage, to
permanently deprive the other of his or her benefits in the same.


MRS SALAYEKHA vs MR ANORD SALAYEKHA Civil Appeal No. 43 of 2005. MWHC
Blantyre Registry. Judgment delivered on 24th January, 2006
CORAM: Hon. Justice M.C.C. Mkandawire

Facts
The parties’ marriage was dissolved on grounds of appellant wife’s adultery. Lower court
ordered the respondent to pay her K20, 000.00 to be used to construct a house for her at her
home since he had not built a house for her during the subsistence of their marriage. The
appellant however contends that the amount awarded to her would not be enough to construct a
house. Secondly she contends inter alia that household property was not shared fairly by the
lower court.

Legal Issues
How much should a husband be ordered to pay his ex-wife for purposes of construction of a
house for her in cases where marriage ends before building a house for her? What would be the
criterion to ascertain the amount?

Judgment
   - The order of K20, 000.00 for construction of the ex-wife’s house was unrealistic. Instead
     court ordered the respondent to build the house other than paying an amount of money.
     Court would need experts to assess how much construction of a house would cost.
   - Court found that the household property was fairly distributed by the lower court

Ratio Decidendi
Where there is no expertise to assess costs for constructing a house, court should be inclined
towards ordering the husband to build a house for his ex-wife other than ordering an amount of
money, since that would be unrealistic at times.

LIGHANO OWEN MWALWANDA vs DORREN DAWILA MWALWANDA CIVIL
APPEAL NO. 7 OF 2005 MWHC LILONGWE. Judgment delivered on 20th November
2006.

CORAM: HON. JUSTICE CHOMBO
Facts

The appeal arises from the decision of the lower court on the distribution of the matrimonial
property after an order of divorce was pronounced. It was submitted that the lower court
proceeded to distribute the matrimonial property without examining the parties about their
individual interests thereof. The appellant now disputes the distribution of the property.
Appellant acquired a plot of land before he married the respondent but developed it after they



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were married. The appellant also acquired a commercial plot No. 47/2/213 on which is a
workshop in Area 47 and partly paid for it during the subsistence of the marriage and partly after
the separation. Its profits are used for children maintenance. The respondent however contends
that after the appellant applied for the plot which he got in 1998 she put her money on the house

Legal issue(s)

    -   Whether it was intended by the parties that the property would be jointly held when the
        purchase was made.
    -   Whether respondent contributed money in the workshop business (the commercial
        property).

Judgment

    -   Commercial plot to be sold and proceeds be shared equally between the spouses.
    -   The other plots of land were intended to benefit the children. Court ordered those plots be
        registered in the children’s names.

Ratio decidendi

The duty of the court is to discover as far as it can, the intention of the parties at the time
property was acquired, in order to determine who has interests in the property.
12. REBELLO V REBELLO Matrimonial Cause No. 10 of 2005 MWHC Lilongwe.
Judgment delivered on 24th May 2006
CORAM: Hon Justice Nyirenda

Facts
The petitioner seeks dissolution of marriage on grounds of adultery by the respondent. Another
matter is distribution of matrimonial property. There is joint ownership of the house in Area 49.
Both the respondent and the petition have made contribution towards the purchase of the house.

Legal Issues
   - Whether or not adultery was established?
   - In what proportions should the property be distributed to the parties?
Judgment
   - Adultery and cruelty proven. decree nisi of divorce granted to the respondent
   - It is ordered in this respect that the house in Area 49 be sold and the proceeds of the sale
       be shared in equal amounts between the respondent and the petitioner.
   - With regard to the remaining matrimonial property, the Assistance Registrar would
       establish how to distribute between the parties as he deems appropriate.
Ratio decidendi
Where it is not clear how much each of the spouses contributed to matrimonial property, the
court will consider what would be equitable in the circumstances of the case.




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BARNET PHIRI V FANNY PHIRI Civil Appeal no. 15 of 2006: MWHC Mzuzu. Judgment
delivered on 19th February, 2007
CORAM: Hon. L.P. Justice Chikopa MR

Facts
The lower court dissolved the parties’ marriage on grounds of the respondent’s adultery and
cruelty on the appellant husband. She thereby forfeited her dowry. The respondent was in college
doing her studies and the respondent was paying her fees. He paid K100, 000.00 as part of her
fees. Upon dissolution of the marriage the lower court ordered that the appellant pay the
respondent K500, 000.00 as part of her fees to finish her education. Appellant commenced the
case against the respondent whilst she was still at school. On that the lower court held that he
disturbed her and she ought to be compensated. As a result of torture including physical torture
by the appellant on the respondent, lower court awarded the respondent compensation of K120,
000.00. The appellant appeals against that decision contending that the lower court was biased
towards the respondent wife and that the court also erred in awarding the respondent the parties’
uncompleted house in Salima.

Issue (s)
    - Whether or not college fees for the ex-wife suffice as maintenance? Whether ex-husband
        is obliged to pay school fees for ex-wife?
    - Whether or not the maintenance orders made by lower court were within means of the ex-
        husband as per section 24 (1)(b) of the Constitution of Malawi?
    - Whether or not the award of the house to the respondent wife was justifiable.
Judgment
    - School fees do not suffice as maintenance and ex-husband is not obliged to pay school
        fees for the ex-wife as it is not part of the necessaries.
    - The amounts awarded to the appellant were beyond the ex-husband’s means. Order to
        pay K500, 000.000 as fees set aside.
    - An order for compensation for torture set aside. Torture is a tortuous wrong and cannot
        be pleaded in the instant case. In addition, the respondent being in the wrong and by so
        doing having forfeited lobola is not entitled to compensation. She was responsible for the
        break up of the marriage.
    - Respondent was also not entitled to a share in the matrimonial house since she did not
        contribute any money towards its construction.

Ratio Decidendi
   - In as much as the wife upon dissolution of marriage is entitled to fair disposition of
       property, regard must also be had to the means of income of the former husband.
   - An order of maintenance is meant to cater for basic necessities of the ex-wife and college
       fees do not suffice as part of the necessities
   - For an ex-wife to benefit under section 24 (1) (b) of the Constitution, the property must
       be only that was jointly held with the husband, i.e. matrimonial property. Wife will not
       benefit from property which she did not contribute towards its purchase.

ANDREW GIDEON vs ENELESI GIDEON Civil Appeal No. 84 of 2006: MWHC
Blantyre. Judgment delivered on 15th September, 2006



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CORAM: Hon. Potani, J.

Facts
The parties’ were marriage was dissolved by the lower court. The court among others ordered
that the parties’ matrimonial house the parties acquired during their union be sold and the
proceeds be shared equally between them. The appellant’s husband appeals against that decision
contending that the respondent wife is not entitled to a share in the matrimonial house since he
already built a house for her at her home as per custom. He also alleges that the marriage was
invalid since it did not have ankhoswe.
Legal Issues
    - Whether or not the marriage was valid?
    - Whether or not the respondent wife was entitled to a share in the matrimonial house
        notwithstanding that the appellant husband already built a house for her?
Judgment
    - The parties’ marriage was a valid by repute according to the constitution.
    - The wife was entitled to a share in the matrimonial house even though the ex-husband
        had already built a house for her. Building a house for the wife is a requirement by
        custom.
Ratio decidendi
For marriages under customary law having built for the wife a house as a requirement by custom
does not forfeit her beneficial interests in the matrimonial house.

DYSON YUSUFU vs CHRISSY YUSUFU CIVIL APPEAL NUMBER 56 of 2006 MWHC
Blantyre Judgment delivered 12th August, 2009.
CORAM: Joselph s. Manyungwa, J.

Facts
The matter was for purposes of distribution of matrimonial property upon dissolution of marriage
of the parties. Plot on which the couple had their house was awarded to the wife. The appellant
contended that he bought the plot on 2nd March, 2002 through the respondent from his business
proceeds. He produced no documents to support the claim saying the wife gave him no
documents. On the contrary the respondent contended that she bought the house herself on 2nd
March, 2002 before she married the appellant from her business proceeds. She exhibited
documents showing her title to the house. The marriage was contracted through customary law.
She also contended that the appellant did not build a house for her as per required by customary
law.

Issue (s)
Whether or not the property was jointly held between the parties?

Whether or not the appellant breached his customary law obligations for failing to build a house
for the respondent?

Judgment
From the evidence the property belonged to the respondent. The title deed bore her name. The
appellant failed to establish that the intention was to jointly hold the property. Court further held



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that the appellant was in breach of his customary obligation in Chikwawa for not building a
house for the respondent and in lie of that breach; the court awarded the house in question
wholly to the respondent.

Ratio Decidendi
In order to ascertain whether or not property was jointly held upon dissolution of marriage, it is
important for the court to determine wherever possible what the parties’ intention was when a
particular piece of property was acquired: an inference of joint ownership is not to be made from
the mere fact of existence of marriage.

OSTEN PHIRI VS LEA MSOMPHA Civil Appeal No. 24 of 2006: MWHC Mzuzu.
Judgment delivered on 28th June, 2006
CORAM: Hon. Justice R.R. Mzikamanda

Facts
The parties stayed together ever since 1988 to 2005 like husband and wife although their
marriage was not formalized. They were married by repute. They had three houses on one plot
and other property. Their union was dissolved. A week later he found that the woman married
another man. Three months later the appellant refused the court order for distribution of property
that was acquired during their union, being angry with the fact that the respondent married
another man. She was awarded the matrimonial house but he refused to let it go. He also claimed
that he gave the respondent capital for her business but that she grew rude to him later.

Issue (s)
Whether married parties by repute or cohabitation, upon dissolution of their union, are entitled to
distribution of property acquired during the union as if they were traditionally married.

Judgment
Court ordered a fair distribution in the matrimonial property to the respondent since she also
contributed in its purchase. Court also awarded her one of the three houses the two owned or in
the alternative a sum of money equivalent to one of the houses.

Ratio Decidendi
Property acquired during cohabitation or repute suffices as matrimonial property and is subject to
fair distribution upon dissolution of the cohabitation. Same rules of distribution of property apply
in all types of marriages in Malawi.

PATRICIA KADZIPONYE VS USMAN ASSANI Civil Appeal No. 24 of 2006: MWHC
Lilongwe. Judgment delivered on 31st January, 2008.
CORAM        :     CHOMBO, J.

Facts
The marriage of the appellant and respondent was dissolved in the lower court. At the close of
the day the matrimonial property was distributed. The appellant, not satisfied with the said
distribution now makes this appeal. The property included a house, a shop with property worth
about K50, 000.00, various kitchen utensils, radio, TV Screen motor vehicle, two bank accounts



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and 2 single beds. The lower court gave the respondent the house, shop, 2 bank accounts and the
motor vehicle. Her point of appeal is that the respondent got the bulk of the property whilst she
was given a plot with a house, which house has since fallen. The appellant submitted further that
she contributed towards the construction of the shop and house in which the respondent is now
living in and she would like to have a share of the same. She also claims compensation from the
respondent for the clothes belonging to her which he burnt.

Issue (s)
Whether or not the lower court unfairly distributed the property?

Judgment
   - Upholding lower court’s order but increasing the amount ordered for compensation for
     burning the wife’s clothes.
   - The wife awarded two houses which the respondent had already built in her home and a
     share of the other household property.

Ratio decidendi
Property upon dissolution of marriage ought to be distributed equitably.

NAMKUMBA V NAMKUMBA (Civil Appeal Number 69 of 2007) MWHC Blantyre.
Judgment delivered on 24th January 2008.

CORAM: The Hon. Justice E.B. Twea
Facts
The appellant and respondent were man and wife. They had been married for five years before
the appellant fell ill. The marriage broke down when it was discovered that the appellant was
HIV positive which she suspected was transmitted to her by the respondent. The present
application is for an order for compensation having deserted and distressed the applicant and
distribution of matrimonial property.

Secondly the house that the husband was meant to build for her as per custom, she contributed a
lot her own money than the husband towards the construction. She seeks refund of her
contribution.

Legal Issues
   - Was the applicant entitled to compensation for distress and break down of the marriage
       by the respondent?
   - How much property was the appellant entitled to?

Judgment
Appeal succeeds. The following orders made:- that the respondent compensates his wife, the
appellant in the sum of K10,000 for the divorce and causing her distress; that he compensates her
in the sum of K12,000 for the contribution to the matrimonial house; that he compensates her in
the sum of K10, 000 for the property he took away from the house unilaterally; that he maintains
the child and pay school fees for her until she attains the age of 16 years



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Ratio decidendi

The custom’s requirement that the husband should build a house for the wife does not exclude
the wife’s assistance; material, financial or otherwise; it is however expected that the major
contribution should come from the husband.

BERNADETA MALOLA CHAMBOTI vs EVANCE CHAMBOTI. civil appeal case No. 25
OF 2008 MWHC Lilongwe. Judgment delivered on 19th June, 2008

CORAM: HON. JUSTICE CHOMBO

Facts

This is an appeal after dissolution of marriage and distribution of property by the lower court.
The appellant contends that the court had originally ordered that she be compensated with K50,
000.00 by the respondent. Without any explanation and in her absence, the magistrate
unilaterally charged the sum to K15, 000. The appellant further submitted that when the property
in the grocery jointly owned with the respondent was finally distributed she ended up with only
10% of the property despite the fact that she was the sole contributor of the initial capital. The
court ordered that one house be given for the children but up to now the respondent is refusing to
handover the house or rentals to the children.

The respondent however claimed that the shop was started by him not the appellant. She also
claimed a share of other household property.

Legal Issues
   - Whether or not the appellant had beneficial interests in the grocery?
   - Was the property jointly held? What proportion of the property was she entitled to?
   - Did the court reduce the award of K50, 000 to K15, 000?

Judgment
   - Court ordered that the wife be compensated with K10, 000.00 having contributed labour
     in the running of the shop. Court found as a fact that she did not contribute money in
     setting up the grocery.
   - Upholding the lower court’s decision on distribution of the rest of the property. The
     property was distributed equally.
   - Both the respondent and the appellant were not entitled to an interest in the matrimonial
     house which the lower court awarded to the children of the family
   - The correct amount was K15, 000 not K50, 000. The appellant was mistaken.

Ratio decidendi
A spouse can only obtain beneficial interest in property bought in marriage if he or she makes
contribution to the property’s purchase whether direct or indirect

2007




                                                                                                 14
JANE MKULICHI V HENRY MKULICHI. CIVIL CAUSE NUMBER 1062 of 2007:
MWHC Blantyre Judgment delivered 21 July 2009
Hon H.S.B. Potani, J

Facts
Marriage between the parties was dissolved by the court. Plaintiff made the present application
asking the court to make an appropriate order on how the property acquired during the dissolved
marriage should be distributed between the parties. The property included a hall and a house;
paraffin pump business; [sofa set; entertainment unit; deep freezer bought from Carnival
Furnishers]; an electric sewing machine; a singer sewing machine. The defendant is the one who
purchased the hall and the house. The plaintiff is the one who identified the land, and supervised
the construction work and made a few expenses. She was also doing business with which she
supported in the household expenses whilst the defendant funded construction work. She also
later obtained a loan from the bank, part of which she gave the defendant to start a liquor selling
business. The property was registered in the name of the defendant.

The paraffin pump business is in the name of the plaintiff but capital was provided by the
defendant. Currently the plaintiff runs it single handedly.

The parties were initially married under customary law but later converted into statutory
marriage.

Issue (s)
    - Which property is subject to distribution at the dissolution of marriage?
    - What law governs distribution of matrimonial property in customary and statutory
        marriages?
    - Whether or not the plaintiff has a beneficial interest under constructive trust in the
        property?

Judgment

   1. Since the real property could not be divided court ordered the defendant to pay the
      plaintiff money equivalent to 35 percent present value of the real property and in default
      that the plaintiff takes the property but pays 65 percent value of the property to the
      defendant; and in case of both of them failing to do so: court ordered that the property
      should be sold and be distributed in those proportions.
   2. Court awarded the paraffin pump business to the plaintiff since she used her own capital
      money although the defendant assisted financially in the running of the business and later
      stopped
   3. Court awarded the furniture to the defendant because he purchased it himself with his
      money.
   4. Court held that it is only the jointly held property that is subject to distribution to the
      parties upon dissolution of their marriage.
   5. The Constitution being Supreme law governs distribution of property under both
      customary and statutory marriage: section 24 1 (b) (i).




                                                                                                15
   6. The plaintiff made indirect financial contribution to the development of the property, she
      also relieved the defendant of house hold expenses using her business proceeds whilst he
      funded the development of the property. The plaintiff had beneficial interest in the
      property under constructive trust although registered solely in the name of the defendant.

Ratio Decidendi
Only jointly held property is subject to distribution upon dissolution of marriage. Property is
owned by the purchaser but other non- financial contributions by another party other than the one
who purchases creates for that contributor a beneficial interest in constructive trust.

JOYCE MTEGHA V GEORGE MTEGHA CIVIL APPEAL NUMBER 92 of 2008:
MWHC Blantyre Judgment delivered 6th February, 2009
CORAM: Hon. L.P. Justice Chikopa MR.

Facts
Upon the parties dissolution of marriage the trial court ordered the defendant to pay the appellant
K20030.00 and to be paying her K2000.00 monthly. The court also awarded her a bed. On the
other hand the trial court awarded the defendant matrimonial house; a car; four fridges; two sofa
sets; two Tv screens; a cooker and two radios. The defendant contended that the house belonged
to children of the family. She appealed to the High Court claiming a share in the property saying
it was all matrimonial property and was supposed to be distributed between them equitably.

Issue (s)
Whether the wife had beneficial interest in the property?

Judgment
   - The ex-wife had beneficial interest in the property because it was matrimonial property.
     The court awarded her one fridge; one radio; one sofa set and one TV screen.
   - The court also held that the matrimonial house be held in equal shares between the
     respondent and the appellant (for as long as she remains unmarried) on trust for the
     children of the marriage. The respondent also ordered to contribute to the maintenance of
     the said house.
   - Court also ordered that the appellant be paying monthly sum of K5000.00 for
     maintenance.

Ratio Decidendi

   -   The wife upon dissolution of marriage is entitled to a fair disposition of property held
       together with the husband and also to fair maintenance regard being had to the means of
       the husband and the needs of the children of the marriage.
   -   Matrimonial property should be equitably shared between the parties to the broken
       marriage upon dissolution of the marriage.
   -   Section 24 (1) (b) of the Constitution should be read broadly to cover not only situations
       where parties are married as understood in the traditional sense but also marriages by
       repute.




                                                                                                16
LILLY MOYO V KHAMA SOKO CIVIL CAUSE NUMBER 133 of 2008: MWHC Mzuzu
Judgment delivered 10th January 2009
Hon. L.P. Justice Chikopa MR.

Facts
The parties were divorced and the present case was for distribution of the matrimonial property.
The plaintiff drew the list of the concerned property but the defendant denied that the property
was bought by the family. The defendant said that most of the property belonged to his mother.
But the court found as a fact that the property was obtained by the family and it was all
matrimonial property. The property consisted one head of cattle; 8 goats; 12 chickens; one
mattress; two blankets; one bed sheet and one bed cover; one radio; 3 pails; 2 blankets; 2
sufurias; 2 table chairs; 1 tea-pot; 1 food warmer; 7 metal plates; 1 wooden tray; 2 mphasa and 1
chihengo; 1 sieve and 2 clay pots.

Issue (s)
    - What constitutes matrimonial property?
    - How matrimonial property should be distributed to the parties at dissolution of marriage.

Judgment
   - Matrimonial property includes property obtained during the subsistence of marriage.
   - Court ordered the defendant to pay the plaintiff the sum of K5000.00, which was also
     part of compensation. Court also held that considering his position of life it would be
     unfair to order a payment of a lot more money.

Ratio Decidendi
- Considering Section 24(1)(b) of the Constitution and other case law, a woman is entitled at the
dissolution of a marriage a fair disposition of matrimonial property and fair maintenance taking
into consideration the circumstances of the case including the means of the husband and the
needs of any children of the marriage.

KONDWANI KALUMBI VS LUCY KALUMBI Civil Appeal No. 50 of 2008 MWHC
Mzuzu. Judgment delivered on 17th September, 2009
CORAM: The Hon. MR. Justice L.P. Chikopa

Facts
Upon dissolution of the parties’ marriage the lower court ordered the appellant to pay the
respondent K15000.00 for maintenance every month until she remarries. In addition the court
ordered the appellant to pay the respondent K50, 000 as compensation for assault by him on her.
He appealed against the decision.
Issue (s)
    - Whether the respondent was entitled to maintenance by the ex-husband upon dissolution
        of the marriage.
    - How long does the husband obliged to maintain the woman if she does not remarry at all?

Judgment




                                                                                               17
Court upheld the lower court’s decision. The respondent was entitled to payments for
maintenance from the appellant for as long as she does not remarry. She was also entitled to the
compensation

Ratio Decidendi
   - A wife is on dissolution of marriage entitled to fair maintenance consideration being
       taken to the means of the husband and the needs of any children.
   - Upon dissolution of marriage the husband will indefinitely maintain his ex-wife for as
       long as she does not remarry

MONICA ZOLO VS QUAWANISO KUMWENDA Civil Appeal No. 21 of 2008: MWHC
Mzuzu. Judgment delivered on 20th November, 2008
CORAM: The Hon. MR. Justice L.P. Chikopa

Facts
Upon dissolution of the parties’ marriage, the lower court distributed the property of the
marriage between them. The appellant was unhappy with the way the property was distributed
because the court awarded the respondent certain property, i.e. motor vehicle without
considering the fact that she contributed K200, 000.00 towards its purchase price which was
K450, 000.00. The vehicle was registered in the respondent’s name. He was also awarded the
parties’ matrimonial house, reason being that the house is situated within his village. The
appellant also demand a share in harvested maize. She also claimed that he owed her some
money.

Issue (s)
    - Whether or not the appellant was entitled to a share in the property?
    - Whether or not property rights in real property for one party should be disregarded for the
        reason that the property is situated in the other party’s village?

Judgment
   - Court found as a fact that the appellant contributed to the purchase of the car K200,
     000.00 and was therefore entitled to a share thereof. As a matter of fact the court found
     that the car was still registered in the seller’s name not the respondent’s name; and
     therefore the lower court erred in awarding the respondent the car on the basis that it was
     registered in his name. Court ordered that the car be sold and the proceeds be shared in
     equal proportions between the appellant and the respondent.
   - The appellant is entitled to half share of the maize harvest or in the alternative K78,
     000.00.
   - The respondent ordered to pay back K85, 000.00 loan he took from the appellant.
   - The respondent to pay K6000 for maintenance to the wife and children.

Ratio Decidendi
   - On the dissolution of marriage a wife is entitled to a fair disposition of property held
       together with the husband as per section 24 (1) (b) of the Constitution.




                                                                                                18
   -   As long as the parties contributed to acquiring of the property, it does not matter whether
       it is registered in both their names, and one of them, or even none of their names, it
       remains jointly held property.

EMILY NYASULU VS KELVIN TEMBO Civil Cause No. 111 of 2008: MWHC Mzuzu.
Judgment delivered on 2nd December, 2008
CORAM: Hon. MR. Justice D.T.K. Madise

Facts
The parties’ marriage was dissolved in the lower court. The present matter is for distribution of
the property of the dissolved marriage. The appellant wife was not working but she did all
household chores like cooking, cleaning the house, looking after the husband and the children
among others. She claims share of the property

Issue (s)
Whether or not a house wife has a share in matrimonial property where it is only the husband
bringing income in the home and vice versa?

Judgment
Court held that the wife was entitled to a fair share of the household property. She was also
entitled to a share in the matrimonial house. She was awarded K90, 000.00 out of K190, 000.00
which were proceeds upon the sale of the matrimonial house.

Ratio Decidendi
   - A house wife is entitled to a share of matrimonial property. Her contribution can be
       quantified as cooking, washing, cleaning the house, looking after the husband and
       children among others. The same applies to a jobless man as against a working wife.
   - Since ordinarily people in marriage do not contemplate dissolution of their marriage
       when acquiring property, it must therefore be a duty of the court to determine the
       intention of the parties and make an order as to how the property should be shared.
       Where the intentions are not clear, court should use equity.

ROSINA KAYIRA (NEE MTAMBO) V JAMES KAYIRA Civil Cause No. 44 of 2008:
MWHC Mzuzu. Judgment delivered on 1st August, 2008
CORAM: The Hon. MR. Justice L.P. Chikopa

Facts
The parties were divorced in the lower court. The present matter is for distribution of
matrimonial property. The parties were married for 20 years. they have four children who live
with the respondent because the petitioner is jobless. She asks the court to award her among
other household property, the matrimonial house and award the husband a car they had. The car
was bought by the husband’s own money through a loan with his employers.

Issue (s)
    - What amounts to matrimonial property?




                                                                                                19
   -   How the should property be distributed upon dissolution of marriage between the
       husband and the wife? What should be the proportions?
   - Whether or the petitioner is entitled to maintenance by the respondent?
Judgment
   - Matrimonial property is that which is held by husband and wife as a family, not
       necessarily property registered in both their names but such property regarded by them as
       belonging to the family.
   - Court refused to award the appellant the house and instead awarded the respondent for
       the sake of the children who were going to continue staying with him.
   - Appellant awarded equal share of other household items as that of the respondent.
   - Respondent ordered to pay appellant maintenance of K8, 000.00 every month for her to
       recoup the loss she has incurred as a result of losing beneficial interests in the house and
       the car, a part from the general obligation to be maintained by the respondent.
Ratio Decidendi
   - Matrimonial property does not only refer to property registered in both the names of
       husband and wife, but generally that property regarded by the couple as belonging to the
       family; and it is that property which is subject to distribution upon dissolution of
       marriage.
   - The parties to the marriage are entitled to fair proportions of the matrimonial property
       upon dissolution of marriage.
   - When distributing matrimonial property to husband and wife upon dissolution of their
       marriage, higher proportion of the property should be given to the one who has custody
       of the children of the marriage.
   - Wife is entitled to maintenance by the ex-husband for as long as she remains unmarried.

ELLEN SHABA V DAVID CHIZUNGA Civil Cause No. 96 of 2008 MWHC Mzuzu.
Judgment delivered on 13th November, 2008
CORAM: Hon. MR. Justice D.T.K. Madise

Facts
The marriage between the two parties was dissolved in the lower court. The present matter is for
distribution of matrimonial property.

Issue (s)
Whether or not the wife being jobless was entitled to a share in the property acquired while the
marriage subsisted.

Judgment
Court awarded the plaintiff a share in the household items and the defendant the other items in
accordance with each of their choices in the list of property.
But the court awarded the children of the marriage the matrimonial house and ordered that it be
rented out, and its proceeds be used by the children’s maintenance.

Ratio Decidendi




                                                                                                   20
   -    A house wife is entitled to a share of matrimonial property because her contribution can
        be quantified as cooking, washing, cleaning the house, looking after the husband and
        children among others. The same applies to a jobless man.
   -    It is the duty of the court to determine the intention of the parties and make an order as to
        how the property should be shared. Where the intentions are not clear, court should apply
        equitable principles.

KAUNDE vs. KAUNDE AND ANOTHER MISC Civil Cause No. 28/2007: MWHC
Lilongwe Judgment delivered on 14th January 2008.

CORAM: Hon. Chinangwa, J

Facts

The applicant was married to the respondent’s late son. Soon after burial of her husband the
respondents took away household property belonging to the wife. The respondents also took
away the couple’s matrimonial home in which she was living with the deceased husband. She
seeks an interlocutory injunction restraining the respondents from dealing with the said property.
This application is brought under section 16(3) of the Wills and Inheritance Act (Cap 10:02)
Laws of Malawi. The said section 16(3) provides:

        “Notwithstanding subsection(2) the customary heirs of a deceased man should not
        be entitled to any share in the household belongings used by a widow of the
        deceased during his lifetime, or in the doors, windows or other fittings of any
        house provided for a widow of the deceased in which she wishes to continue to
        reside.”

Legal Issues

Whether or not the wife is entitled in the said property?

Judgment
Applicant entitled to the household property. However since there was no list of the said property
presented before the court for determination whether it was household property used by her
during her husband’s life time, the parties were ordered sort out the issue amicably on their own.
The respondents agreed that they would return the property including the house

Ratio decidendi
Where there is a possibility of amicable agreement on distribution of property between heirs of
the deceased man and the widow, court can order the same to be done; but where there is no
mutual understanding between them the court shall intervene to ensure fair allocation of the
property.

MASOZI MWENITANGA vs STEVEN MMANJAMWADA Civil Cause No. 147 of 2008:
MWHC Mzuzu: Judgment delivered on 20th March, 2009
CORAM: The Hon. MR. Justice L.P. Chikopa


                                                                                                   21
Facts
The parties were granted dissolution of their marriage. The present matter is on distribution of
matrimonial property and custody of children.

Issue (s)
How should matrimonial property be distributed upon dissolution of marriage? What are the
proportions?

Judgment
   - The petitioner is entitled to a fair disposition of the matrimonial property. She was
     awarded kitchen utensils, a Tv screen, mattress among other house hold items.
   - Respondent ordered to pay K2000 every month for maintenance of the appellant for as
     long as she remains unmarried and also K2000 every month for maintenance of the
     children from the broken family.

Ratio Decidendi
   - Property should be distributed considering what is fair in the circumstances of a
       particular case
   - Wife is entitled to a fair disposition of property held together with the husband upon
       dissolution of marriage, and to fair maintenance.

DAVIE KAONGA V EUNICE MWALE Civil Cause No. 60 of 2009: MWHC Mzuzu
[sitting at Karonga] Judgment delivered on 17th August, 2009
CORAM: The Hon. MR. Justice L.P. Chikopa

Facts
The parties’ marriage was dissolved by the lower court. The matter came to High Court to decide
on the ownership of a house which was built in the respondent’s parents premises. The
respondent claims she built the house with her own money which she received as gratuity from
her late and former husband, K200, 000.00 and that she only employed the petitioner to build the
house. The petitioner however disputes that contending that the house was built by his money.

Issue (s)

Whether or not the petitioner (husband) has a share in the house? If yes, to what extent?

Judgment
Court awarded the house to the respondent, finding as a fact that she made substantial
contribution to its development. Court dismissed claims that the appellant husband was an
employee and was paid for the building of the house, but found as a fact that he also contributed
in the building of the house and therefore entitled to a share of K7, 000.00. Respondent was
ordered to pay the respondent K7, 000.00 less K6000.00 as part of lobola he had failed to pay.

Ratio Decidendi




                                                                                                   22
Upon dissolution of marriage each party to the dissolved marriage is entitled to a share in the
matrimonial property in accordance with his or her contribution to the acquiring of the property.

ASKIM PHIRI V MARTHA MHANGO Civil Appeal No. 40 of 2009: MWHC Mzuzu.
Jdgmentnt delivered on 16th March, 2009
CORAM: Hon. MR. Justice D.T.K. Madise

Facts
The parties were married under customary law in 2007. Their marriage was dissolved by the
lower court in 2008. The respondent claimed that she contributed K50, 000.00 to the
construction of their matrimonial house which later fell. She demands recovery of the said
amount which the lower court granted. The court also ordered the appellant to pay the respondent
K70, 000.00. The appellant appeals against the order contending, inter alia, that it is untrue that
she contributed to the construction of the said house.

Issue (s)
    - Whether the former wife contributed to the construction of the house.
    - Whether the lower court, by making such orders acted within its jurisdiction.
    - Whether or not a former wife can claim money contributed to the construction of a family
        house or business

Judgment
   - The appeal allowed to the extent that the appellant was not liable to pay the respondent
     the claimed K50, 000.00. There was no documentary evidence that that she contributed to
     the construction of the house. Court found it unreasonably probable that the wife could
     have advanced the K50, 000.00 to the husband as a contribution to the construction of the
     house since she did not show documentary evidence and the claim did not stand on the
     balance of probabilities.
   - Since there was no evidence that she advanced any money for construction of the
     matrimonial house, respondent was not entitled to claim interests in the house.
   - Court upheld the lower court’s order for the appellant to pay the respondent K70, 000.00
     as compensation.

Ratio Decidendi

   -   Since during purchase of the property in a family parties do not usually anticipate
       dissolution of the marriage and end up purchasing property without clear titles between
       them, it is the court’s duty, upon dissolution of the marriage, to ascertain the intentions of
       the parties to the marriage when the property was purchased; as to whether it was meant
       to be jointly held or not.
   -   A party to a marriage has no claim of rights over property she did not contribute towards
       its purchase, unless it was intended by the parties to jointly hold the property.




                                                                                                  23

				
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